ZIMBABWE EZEKIEL GUTI UNIVERSITY

FACULTY OF LAW

BACHELLOR OF LAWS (HONOURS) DEGREE

ADRIAN HAMANDAWANA R220385L

ORDINANCE MAHUKE R22467L

DELIVERMORE MARAPIRA R220395L

NAOMI MAGANGA R220366L

KUZIVAKWASHE MAKUKU R220389L

JOSEPH KAPUNURA R220379L

RUTH MATARE R220465L

COURSE: HISTORY OF ROMAN DUTCH LAW COURSE CODE: LLB113

QUESTION: Describe the process by which Roman Law was received in the Netherlands
and how Roman Dutch Law emerged including the factors that were responsible for this.

LECTURER’ COMMENT:
…………………………………………………………………………………..

DUE DATE:23 MAY 2022

INTRODUCTION

The scope of this essay is the description of patterns and nature of the process by which
Roman Law was received in the Netherlands and also outlining how Roman-Dutch Law
came to be and the factors that led to the emergency of such fusion of legal systems.
Reception means the absorption or adoption of the rules , principles and institutions of a legal
system into an existing legal system. Some of the processes of reception of Roman Law in
Netherlands were Infiltration, Adoption, Diffussionist theory, Assimilation only to mention a
few. There are some economic, political and social factors which led to the emergence of the
Roman Dutch Law namely the introduction of the policy centralization, rise in commerce and
industry, rise of Universities and also the establishment of a court of appeal by the House of
Bugurndy.

NEO COLONISATION

This is the phenomenon where there exist a neo -colonial relationship between the colony
that is the people of Netherlands and the colonisers which were the Romans.The neo -colony
copies the laws of the colonial masters because it has no independent
thought .Holland ,whose inhabitants were mainly tribes of Germanic origin was conquered
and occupied by Roman under Emperor ,Julius Ceasar .1This made the people of Holland to
depend on the laws of the Romans .Hahlo and Kahn concurred and they submitted that
"...five hundred years of Roman rule could however could not ,fail to leave their impression
on laws of Germanic tribes ". 2Hence this shows that neo colonisation played a crucial in the
reception of Roman Law in the Netherlands

ASSIMILATION

1
L.Madhuku p.18 Introduction to Law
2
Ibid p.18
Assimilation is the process whereby the people of Netherlands freely borrowed from the
Roman Law to supplement gaps in its development of their legal system. With the collapse of
Roman rule AD 476,the reception took a new form which involved resorting to Roman Law
in situations were customary Law failed to provide answers. 3The reception of Roman law
according to Proffessor A. Watson is related to the concept of legal borrowing which entails
that when lawyers seek a solution and none is available within their own system the thinking
lawyer can find precedent elsewhere the under the legal borrowing concept Netherlands states
absorbed and adopted the rules, principles and the institutions of Roman Law .4Bit by bit the
local customary Law was reconstructed in light of Roman Law .This has been supported by
Wille's Principles of Southern Africa he said that … [in] the Netherlands, when it
wasbecoming clear that the local Dutch laws were not sufficiently developed to suit the
conditions of the country, the more detailed principles of the Roman law were turned to and
applied by the rulers, by the courts and by the people.Thereby allowing the people of
Netherlands to use the Roman law in cases where it applied.

GRADUAL INFILTRATION

This is a period through which few Roman law rules were chosen and then randomly
incorparated into Germanic customary law.5 During gradual Infiltration, the Romans allowed
the local elite of Netherlands to take care of daily administration. The Process of Gradual
Infiltration ensured loyalty of the local Dutch people to the Roman Authorities. It is
important to note because of trade and association, some elements of Roman law were
received unnoticed through infiltration. 6Later on through the formation of Universities,
Netherlands’ citizens got to know the Roman law through the lessons which they got at
school. These lessons had a decisive influence on the development of a new legal system
based on Justinian’ codification. The ecclesiastical judges who had a sound knowledge of the
Romano- Canonical procedure played a role in the early reception of Roman law in the
Netherlands.

Adoption also played a vital role in the emergency of Roman-Dutch Law as the Dutch locals
who were incorporated in the various Roman institutions for specific roles, took their colonial

3
Lovemore Madhuku p.19 Introducton to Law
4
Alan Watson (1985)The evolution of Law,The John Hopkins University Press,Baltimore USA
5
GJ.Van Niekerk,L Wildenboer The origins of South African Law ,Department of Jurisprudence
6
Nyamukondiwa Fidelice ,Roman Dutch Law Zimbabwe ,May 2017
masters’ ideas and introduced them to their own Dutch tribes.7 This category of Dutch people
had familiarised themselves with the Roman Law which they had participated in and
observed during their service time environments under Roman Law jurisdiction.

The establishment of a court of appeal paved way to the emergency of Roman-Dutch Law,
the Groot Raad in Mechelen, Hooge van Raad Holland, Zeeland and Friesland at Hague saw
the widespread of Roman Law in Netherlands. Lawyers were trained in Latin universities and
these courts were guided by Roman Law apart from their own Dutch customs.8 They
Preferred Roman Law which was codified to their own customary law which they referred to
as being ‘barbaric’ laws. Thus, the Dutch law of obligations (contract and delict) and the law
of property were highly influenced by Roman Law.

The rise of universities also aided in the emergency of Roman-Dutch Law, before the
establishment of Universities in Netherlands, students could go and study Roman Law in
Italian Universities. in 1425 Louvain University was established in Netherlands followed by
Leiden University in 1575 and Franeker University in 1585. So, the establishment of these
universities meant student could now study Roman Law (corpus juris civilis) which was a
body of codified Roman Laws.9 The students from universities became professionally learned
jurists who in turn prescribed Roman Laws as solvent in scenarios where Dutch customs fell
short and not binding. These learned jurists regarded Roman Law as rich with wisdom and
equity.

Literate Dutch Roman Catholic Church officials also initiated the emergency of Roman-
Dutch Law in that, most of the Dutch people were illiterate and the only people who were
mostly literate were officials of Roman Catholic Church. These officials were schooled in
Latin language and had studied Roman Law. The leges barbarorum was mainly the work of
these clerics, who included Roman Law Principles in the codification of Germanic Law. As
resultant some rules of Roman Law were preserved in the Germanic Codifications.10

The House of Burgundy encouraged the spread of Roman Law as a policy of unifying their
possessions. They resorted to Roman law in solving customary contradictions that had grown
throughout the provinces of Holland. In so doing Roman legal thinking was adopted and
incorporated into the hierarchical structure of the courts in Netherlands. The courts were also

7
L. Madhuku, An Introduction To Zimbabwean Law, (2010) 18.
8
Supra.
9
E. Davies, Foundations Of Law, (2019) 17.
10
GJ van Niekerk and L Wildenboer, The Origins Of South African Law (2010).
staffed with professional lawyers who were trained in Italian Universities.11 In regard to the
Burgundy encouragement of adopting Roman Law, the emergency of Roman-Dutch Law was
initiated. The Burgundians issued statutes by sixteenth century which contained an explicit
reference to the application of the written law (Roman law). This was evidence that the
Burgundians were endeavouring to introduce a uniform, central system of law through
Roman law.

POLITICAL FACTORS

Political factors were also of great\ importance and were responsible for the emergence of
Roman laws in the Netherlands This is evidenced by legislation of the customary law so as to
promote order and certainty in courts. In the fifteenth century, the territories of Netherlands
were under Burgundians rule and they introduced a policy of centralization as it eliminated
all the diversity which existed as a result of many different provinces which had different
administrations and law.12 The attempts at centralization indirectly paved the way for the
reception of Roman Dutch Law. The Burgundians issued statutes by sixteenth century which
contained an explicit reference to the application of the written law (Roman law). This was
evidence that the Burgundians were endeavouring to introduce a uniform, central system of
law through Roman law.

The Burgundians attempted to remove various contradictory provincial customs and bring
order and certainty to all the prevailing customary laws by giving instructions that the
provincial customs be put in writing. The process entrenched Romanist principles because at
the time of drafting, many Romanist principles were incorporated into customary law,
creating an ‘instant’ reception. Lastly customary law provide proof in seventeenth century as
High Court further ensured the success of the reception proper by strictly enforcing the
requirement that customary law has to be proved by a group of witness. Since the witnesses
could not always satisfactory prove the existence of a specific customary law rule, judges
frequently applied the more easily accessible Romanist commentaries instead.

11
Supra.
12
GJ Van Niekerk ,The Origins of South African Law
ECONOMIC FACTORS
Moreover,the reception of the Roman law into the Netherlands was witnessed by economic
factors that include the rise of commerce and industry.The whole aspect of life changed as
there was a transition from the agricultural to the commercial oriented economy that
demanded a system of law far complex than the native Germanic law. 13The local law was not
systematic or uniform enough to cope with the new demands and recourse was had to Roman
Law.The need of legal advice also shows how the economy played a vital role in the
reception of the Roman Law into Netherlands.The rich merchant class often needed legal
advice and it appears that the advocates they consulted heavily relied on Roman Law as
systemised by the humanists.14 Economic change brought about a shift in the importance of
towns in the Netherlands. During the 15th century, towns started adopting a more systematic
approach to drafting their local legislation. 15This clearly elucidates the influence of Roman
Law in Netherlands.

CONCLUSION

In conclusion it is worth to note that the reception of Roman Law in Netherlands was not
sudden and exponential rather it was a gradual process that took time to be termed as
complete.It was also through the process of assimulation and colonization which aided to the
reception of Roman Law in the Netherlands. Also, the process of reception was aided with
the outlined factors to form a complex body of law, the Roman-Dutch Law.These factors
included political and economic factors.

13
E.Davies Foundations of Law
14
GJ.Van Niekerk(2009)p.113 The Origins of South African Law. The University of South Africa Pretoria
15
GJ.Van Niekerk(2009)p.114 The Origins of South African Law. The University of South Africa Pretoria
 BIBLIOGRAPHY

Lovemore Madhuku , Introducton to Law

E.Davies Foundations of Law

GJ.Van Niekerk(2009)The Origins of South African Law. The

University of South Africa Pretoria

Alan Watson (1985)The evolution of Law,The John Hopkins

University Press,Baltimore USA

Nyamukondiwa Fidelice ,Roman Dutch Law Zimbabwe ,May

2017